https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9002

Kizingwa v Republic (Criminal Petition E007 of 2025) [2026] KEHC 9002 (KLR) (25 June 2026) (Judgment) Neutral citation: [2026] KEHC 9002 (KLR) Republic of Kenya In the High Court at Vihiga Criminal Petition E007 of 2025 JN Kamau, J June 25, 2026 Between Simon Kizingwa Petitioner and Republic Respondent Judgment Introduction 1.The Petitioner herein was charged with the offence of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act No 3 of 2006 and he was convicted and sentenced to life imprisonment. 2.Being aggrieved by the said decision, he averred that he lodged an Appeal to the High Court in Kakamega which was dismissed. He further stated that he lodged a second appeal to the Court of Appeal in Kisumu which was also dismissed. He did not provide the citations of the two (2) cases. 3.On 28th May 2025, he filed this undated Petition seeking a lenient sentence by way of a review of his sentence. He averred that he was the sole breadwinner of his needy family and that he had done various Theological courses as proof of reform and rehabilitation in prison. He also urged this court to consider the period that he spent in remand during trial pursuant to Section 333(2) of the Criminal Procedure Code. 4.His undated Written Submissions were filed on 14th October 2025 while those of the Respondent were dated 17th November 2025 and filed on 18th November 2025. The Ruling herein is, therefore, based on the said Written Submissions which the parties relied on fully. Legal Analysis 5.The Petitioner submitted that he had been incarcerated for fourteen (14) years during which time he had lived peacefully with his fellow inmates and prison authority while engaging himself in various rehabilitation-based programs acquiring certificates in biblical studies. He asked this court to consider that he was from a poor background and that due to the long period of incarceration, it would be difficult for him to reintegrate back to the society. 6.He averred that to human was to err. In this regard, he stated that he had reformed and promised not to engage in crime again. He expressed remorse and pointed out that he was a first time offender and had not been aware of the consequence of the crime, which he had now learnt. He contended that he had gained enough skills to enable him reintegrate back to the society. 7.He was emphatic that the continued incarceration without future prospect of release would ruin his life and the Mandela Rule and prison’s moto of ‘kurekebisha na haki’ would not be realised. He added that he had learnt his lesson and pleaded with this court to consider granting him a second chance in life. 8.He requested this court to give him a lenient proportionate sentence in conformity with Paul Odhiambo Mbola vs Republic Misc Application No 55 of 2019. He cited the case of Ayko vs Republic Criminal Appeal No 22 of 2018 (KLR) without highlighting the holding that he was relying upon, only pointing out that it would give him his dignity back and warn others against engaging in crime. He pleaded with this court to declare the period he had served to be sufficient sentence. 9.In opposing the Petition herein, the Respondent argued that the Petitioner was charged under Section 8(2) of the Sexual Offences Act and convicted of having defiled his niece who was seven (7) years old. It stated that the life sentence was the mandatory sentence provided under Section 8(2) of the Sexual Offences Act and that the same was affirmed by the High Court and the Court of Appeal. 10.It placed reliance on the case of Republic vs Joshua Gichuki Mwangi & others Petition No E018 of 2023 (2024) KESC 34 KLR where the Supreme Court stated that mandatory minimum sentences under Sexual Offences Act were not unconstitutional and that the trial courts had no discretion to go below the minimum sentences. 11.Notably, the Petitioner herein was sentenced under Section 8(2) of the Sexual Offences Act Cap 63A (Laws of Kenya) provides as follows:-“A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life. 12.In the case of Joshua Gichuki Mwangi vs Republic (2022) eKLR, the Court of Appeal reiterated the reasoning in the case of Dismas Wafula Kilwake vs Republic (2018) eKLR, where it held that Section 8 of the Sexual Offences Act had to be interpreted so as not to take away the discretion of the court in sentencing offences and held that it was impermissible for the legislature to take away the discretion of courts and to compel them to mete out sentences that were disproportionate to what would otherwise be an appropriate sentence. 13.However, in a decision that was delivered on 12th July 2024, the Supreme Court overturned the decision of the Court of Appeal in the case Joshua Gichuki Mwangi vs Republic (Supra) and stated that the Court of Appeal had no jurisdiction to exercise discretion on sentences that had a mandatory minimum sentence. 14.As this court was bound by the decisions of courts superior to it, its hands were tied regarding exercising its discretion to reduce the Petitioner’s sentence. It had no option but to leave the said sentence that was meted against him undisturbed. 15.This court was also not able to consider the period the Petitioner had spent in remand while his trial was ongoing as provided in Section 333(2) of the Criminal procedure Code Cap 75 (Laws of Kenya), as he was sentenced to life imprisonment, a sentence that was indeterminate. Disposition 16.For the foregoing reasons, the upshot of this court’s decision was that the Petitioner’s undated Petition that was filed on 28th May 2025 was not merited and the same be and is hereby dismissed. His conviction and sentence be and are hereby upheld as they were both safe. 17.It is so ordered. DATED AND DELIVERED AT VIHIGA THIS 25TH DAY OF JUNE 2026J. KAMAUJUDGE